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The Department of Homeland Security Has Twenty Days to Provide a Rational Explanation to Deny DACA to Dreamers

The United States District Court for the District of Columbia again concludes that DHS’s September 2017 decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was both subject to judicial review and arbitrary and capricious. However, the Court will continue the stay of its order of vacate for twenty days to permit the government to determine whether it intends to appeal the Court’s decision and, if so, to seek a stay pending appeal.

The Department of Homeland Security’s initial decision to rescind the Deferred Action for Childhood Arrivals (DACA) program

The Department of Homeland Security rescinded the Deferred Action for Childhood Arrivals (DACA) program on September 5, 2017 based on a one page letter from Attorney General Jeff Sessions stating that the DACA program had been “effectuated by the previous administration through executive action, without proper statutory authority and . . . after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result,” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”1 The letter instructed Acting Secretary Duke to “consider” implementing “an orderly and efficient wind-down process” for the program.2

The Department of Homeland Security’s decision to rescind DACA was arbitrary and capricious

Subsequent legal challenges were presented and on April 24, 2018, United States District Court for the District of Columbia held that the decision to rescind DACA was unlawful and set it aside, concluding both that it was reviewable under the Administrative Procedure Act (“APA”) and that the reasons given to support it were inadequate.3 Subsequent to that decision DHS issued a new memorandum concurring with and declining to disturb” its September 2017 rescission decision arguing that DACA’s rescission was neither unlawful nor subject to judicial review.4

The Department of Homeland Security can still rescind the DACA program

It is important to note that the Court did not hold that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply held that if DHS wishes to rescind the program it must give a rational explanation for its decision.5

Contact a San Francisco Immigration Lawyer

Contact an experienced immigration law attorney at Litwin & Smith. Our team of immigration and naturalization attorneys can assist you and your family with all of your business and personal immigration needs. Benefit from our more than fifty years of immigration law experience and the focused knowledge of our attorneys in immigration and nationality law. We can effectively represent you in your quest to obtain a green card for yourself, an employee, or a family member. We evaluate your situation to determine the most viable method of obtaining permanent residency. We will help you complete and file the appropriate paperwork with the United States Citizenship and Immigration Services (USCIS) and provide guidance along the way.

For more information contact Litwin & Smith at (888) 344-0892 or visit our Green Cards and Naturalization section for more information.

For more detailed information regarding work and family visas, green cards, and other immigration and naturalization issues, please view our Immigration Articles.

AR 251


See NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).

Mem. from Sec’y Kirstjen M. Nielsen (“Nielsen Memo”) [ECF No. 71-1] at 3; See Definitions.’ Mot. to Revise the Court’s April 24, 2018 Order (“Gov’t’s Mot.”) [ECF No. 74]

See 5 U.S.C. § 706(2).


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